A new investigative report by InsideClimate News and the Center for Public Integrity – promoted and produced by the Weather Channel – concludes that shale development in south Texas is “releasing a toxic soup of chemicals into the air,” which the researchers describe as “a bust for local residents who fear for their health.” But shaky research underlying the report raises serious questions about the validity of those claims, including the use of widely discredited literature promoted by activist groups.

The upshot of the InsideClimate/CPI report is that, despite complaints from residents in the Eagle Ford Shale region, regulators have done little to nothing to protect them. The researchers argue that operators who violate rules “face few, if any, repercussions,” all the while air emissions are allegedly threatening public health. To top it all off, the regulators themselves even admit that their rules are inadequate — at least according to the “report.”

CLAIM: “The Texas Commission on Environmental Quality (TCEQ), which regulates most air emissions, doesn’t even know some of these facilities exist. An internal agency document acknowledges that the rule allowing this practice ‘[c]annot be proven to be protective.’” (p. 2)

FACT: What the InsideClimate/CPI team does not tell you is that this excerpt refers to an older version of the law, and in fact was part of a memo that compares the older version with the newly adopted rule. The new rule “[c]an prove protectiveness of health and human welfare and provides practically enforceable records,” according to TCEQ.

In other words, the researchers are suggesting current regulations are inadequate on the basis of an older rule that has since been updated based in part on the very flaw they’re citing.

The memo cited (which is referenced again on page six) does note that operations outside the Barnett Shale will “follow old requirements.” But a second memo (ironically also cited by the InsideClimate/CPI team, but in a different context later in the article) explains that the “old requirements” outside the Barnett only lasted until January 5, 2012. Facilities already permitted under the “permit by rule” system will be grandfathered, but only until January 1, 2016. If those facilities modify their operations, however, they will be required to meet the new requirements immediately.

The InsideClimate/CPI team carefully excerpted and strung together two separate memos, and either deliberately ignored the parts that contradicted their storyline or were unaware that they were critiquing a regulatory system that does not exist. Either way, the basis of the claim that TCEQ’s rules are not protective (and by extension many elements of the report that build off of it) is no longer valid.

CLAIM: “Companies that break the law are rarely fined. Of the 284 oil and gas industry-related complaints filed with the TCEQ by Eagle Ford residents between Jan. 1, 2010, and Nov. 19, 2013, only two resulted in fines despite 164 documented violations. The largest was just $14,250. (Pending enforcement actions could lead to six more fines).” (p. 2)

FACT: The regulatory system in Texas is premised on fixing problems. As such, if there is a violation, regulators respond by requiring operators to fix the issue(s). The TCEQ carefully outlines this process on its website. When the TCEQ issues a notice of violation, operators are given a prescribed time to “return to compliance and provide documentation that all violations have been corrected.” If the violations are not corrected within that time period, TCEQ can initiate a notice of enforcement. Since most violations can be quickly corrected, the number of “violations” will always exceed the number of “enforcements,” but that doesn’t mean the regulatory agency isn’t acting.

The InsideClimate/CPI team is criticizing regulators for not focusing on imposing monetary penalties. That may be a fair critique, but in a world with limited taxpayer resources, state regulators have determined (appropriately) that fixing problems is more important than just levying fines. The researchers also gloss over the fact that a full 120 of the complaints did not show any actual violations, and refuse to detail what each of the 164 violations actually did entail (administrative and paperwork errors, for example, are categorized as “violations,” just as emissions events are).

CLAIM: “But an interoffice memorandum obtained through the Texas Public Information Act indicates the TCEQ knows its statewide air monitoring system is flawed.” (p. 2)

FACT: No, it does not. Once again, the InsideClimate/CPI team is using TCEQ’s explanation for why a new rule was necessary to suggest that the now-replaced rule is insufficient. The research team’s use of the present tense, i.e. “TCEQ knows its statewide air monitoring system is flawed,” suggests to readers that the current system is flawed. But that’s just not the case.

The memo cited is dated January 7, 2011. It details how facilities in the Barnett Shale region would be required to comply immediately, while operators outside that region (including the Eagle Ford) would be required to meet the new compliance standards by January of 2012 –which was more than two years ago.

CLAIM: “The Buehrings complained to the TCEQ in 2012, prompting investigators to check out several Marathon Oil facilities near their home. At one point the emissions were so high, the investigators wrote in their report, that they ‘evacuated the area quickly to prevent exposure.’ Marathon, a Houston-based company worth nearly $25 billion at the end of 2013, reported that it fixed the problem and was not fined.” (p. 2)

FACT: This anecdote was first reported by Earthworks, in a “report” that similarly rested on deception and even outright falsehoods. In fact, if you read the Earthworks report (PDF), you’ll notice that the claims, individual stories, and conclusions about regulators are strikingly similar to the “new” report from InsideClimate/CPI.

More to the point: the InsideClimate/CPI team paints a picture here that the company policed itself, which is exactly what you want to claim if your goal is to suggest regulators are not protecting the public. The only problem is that TCEQ did not simply run away from the facility and leave the company to its own devices. As TCEQ noted in an article last fall, in a section that was fittingly criticizing Earthworks for making the exact same claim:

“[T]he activists state that TCEQ investigators found high levels of VOCs at a site and then left the site, without taking further action to reduce pollution. In fact, TCEQ investigators did find fugitive emissions of VOCs inside the fence line of the facility. The investigators stepped away from the immediate area, the facility representative radioed for a repair crew to come to the site, and the leak was fixed that same day. Like most unauthorized emissions from oil and gas activity, this one was caused by an equipment issue – in this case, a bad valve.”

The InsideClimate/CPI team could not simply tell the story that regulators responded, acted, and the problem was fixed. That wouldn’t support its predetermined narrative that residents “mostly fend for themselves” when problems arise. So, they pieced elements of the truth together to tell the story they wanted, instead of the one that’s entirely accurate, because that’s what good journalists do.

CLAIM: “San Antonio’s ozone levels have violated federal standards dozens of times since the drilling began. Ozone is also one of several greenhouse gases, including methane, released during drilling operations.” (p. 5)

FACT: San Antonio was violating federal ozone standards years before the Eagle Ford Shale boom began, which were also years when the federal standard was higher than it is today (EPAtightened the non-compliance threshold from 0.08 ppm to 0.075 ppm in 2008). EPA uses a three-year average to determine compliance, and the current ozone average for San Antonio is actuallyless than what it was for much of the last 15 years.

Also, ozone is not emitted into the air from drilling operations. Ozone is the product of a chemical reaction from volatile organic compounds (VOCs) and nitrogen oxides (NOx) in the presence of sunlight. As the EPA notes:

“Troposheric, or ground level ozone, is not emitted directly into the air, but is created by chemical reactions between oxides of nitrogen (NOx) and volatile organic compounds (VOC). Ozone is likely to reach unhealthy levels on hot sunny days in urban environments. Ozone can also be transported long distances by wind. For this reason, even rural areas can experience high ozone levels.”

It’s odd that a team affiliated with a presumably “climate”-oriented news organization would make such an egregious error, but given the paucity of evidence to support so many of its claims, perhaps this is just par for the course.

CLAIM: “The air samples the environmental groups took near the Cerny home detected 14 VOCs, including benzene, toluene and xylene, but none in concentrations the TCEQ considers immediately dangerous. Subra said that doesn’t mean the air is safe, because the data came from a ‘grab sample’ that represented only a snapshot in time.” (p. 5)

FACT: Once again, the InsideClimate/CPI team is relying on the Earthworks report from last fall. Prior to the publication of this article, Energy In Depth contacted one of the reporters for CPI and the executive producer from the Weather Channel with some questions about whether they would be relying on this report, specifically the data cited above. Earthworks had compared some of these VOC measurements against long-term health thresholds, something TCEQ has said was “not scientifically appropriate.”

CPI told Energy In Depth in an email that they were “not using” the Earthworks data. The excerpt above links directly to the Earthworks report.

The Weather Channel told Energy In Depth that it was not using the Earthworks report at all for the video segment, although the comparison of short-term readings of benzene to long-term thresholds is referenced in a TCEQ email response shown on screen (9:57). TCEQ emphasizes that making such a comparison would be “ill-advised” and “scientifically inaccurate.”

CLAIM: “The chemicals released during oil and gas extraction include some of the most damaging volatile organic compounds, or VOCs, including benzene and toluene. These chemicals have been linked to cancer, neurological problems, and other serious illnesses.” (6:53)

FACT: The beginning of this excerpt shows an image of the infamous Colorado School of Public Health study from 2012, which used out of date emissions data and inflated exposure times by as much as 900 percent to suggest maximum harm from development. County health officials, whom the CPSH researchers claimed to have been working with, disavowed the paper entirely before it was ever published. A subsequent paper by the same research team received animmediate rebuke from the Colorado Department of Public Health and Environment, specifically Dr. Larry Wolk, a former pediatrician of the year in the state.

It is true that benzene has been linked to cancer, but that link is based on a variety of factors, including long-term exposure at elevated levels. The InsideClimate/CPI team was basing its health scare on short-term samples that actually fall well below the short-term health threshold. The largest sources of benzene exposure in the United States, according to the Environmental Protection Agency, are automobiles and roads.

CLAIM: In an email showed on screen, TCEQ tells the investigative team that they “respectfully decline your requests for further interviews, since your team has already done a number of interviews with TCEQ staff without identifying themselves as employees of the various organizations they represent. You have also called staff members at home.” (9:57; emphasis added)

FACT: The code of ethics for the Society of Professional Journalists states:

“Avoid undercover or other surreptitious methods of gathering information except when traditional open methods will not yield information vital to the public. Use of such methods should be explained as part of the story”

There is no mention in the InsideClimate/CPI report of why the researchers did not disclose their affiliations when reaching out to TCEQ.

TCEQ also references a “scientifically inaccurate and ill-advised” comparison of short-term air samples of benzene to long-term Air Monitoring Comparison Values, or AMCVs, for that compound. This is what Earthworks did in its report (p. 22), which the Weather Channel and CPI teams told Energy In Depth it was not using.

FACT: This is in reference to a statement from Energy In Depth that available data show emissions are not crossing public health thresholds. Perhaps more than any other segment, this highlights the fundamental flaw of the whole report: the researchers went looking for information that indicates harm, rather than conducting a legitimate investigation of the facts. The researcher has already determined that data that do not exist will support his conclusion, and has declared it so by decree. So why even investigate?

CLAIM: “Texas has no statewide setbacks, aside from a 1,320-foot buffer zone for facilities with high levels of hydrogen sulfide. For all other oil and gas sites, it relies on communities to take the lead. Eagle Ford counties like Karnes, LaSalle and McMullen have no restrictions despite a glut of drilling.” (p. 8)

FACT: Actually, Texas does have a statewide setback. It’s listed under Title 8 of the state’s Local Government Code:

“A well may not be drilled in the thickly settled part of the municipality or within 200 feet of a private residence.”

It is true that local governments have the ability to create their own setbacks, but to say that Texas “has no statewide setbacks,” aside from a buffer for hydrogen sulfide, is objectively false.

Conclusion

Despite an “eight-month investigation,” the researchers at InsideClimate News, the Center for Public Integrity, and the Weather Channel stuck with their preconceived narrative throughout, even when a mountain of available evidence contradicted their conclusions. Much of the story hinged on Texas regulators “admitting” that their own existing rules are inadequate, which would have been a much more compelling argument if it were accurate. Instead, the research team – which includes a Pulitzer Prize winner – had to rely on a deceptive presentation and an obfuscation of facts to tell the story it wanted.

It’s useful to have a public conversation about the risks of development, and those who have questions should demand answers based on science and facts. But we don’t solve any problems by deceiving people into believing things that aren’t true, nor is it particularly helpful to push for reforms based on phony science and a deliberate misreading of the regulatory regime currently in place. Companies and regulators alike respond to publicly voiced concerns and search for amenable solutions. When violations occur, they should be fixed – and the available evidence shows that regulators in Texas are ensuring that.

The Eagle Ford has brought hope to a part of Texas that has long suffered from economic hardship. In one county at the heart of development, unemployment dropped from 12 percent to just four percent in a manner of only a few years. In 2012, the Eagle Ford supported more than 86,000 jobs, which translates to roughly $3.3 billion in salaries and benefits paid to working families. Local and state tax revenues exceeded $1 billion, a figure that is only expected to grow. These funds pay for a variety of public services throughout the state, benefitting all Texans.

The InsideClimate/CPI team alleged that “there is little interest in or sympathy for those who have become collateral damage in the drive for riches” with oil and gas development. But in weaving that carefully constructed tale, the researchers paid little interest themselves in the thousands of south Texas families who now have at least a glimmer of hope thanks to the Eagle Ford.

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